Director of Public Prosecutions v Mills

[2021] VCC 1600

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01218

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN RAY MILLS

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 22 October 2021
DATE OF SENTENCE:	22 October 2021
CASE MAY BE CITED AS:	DPP v Mills
MEDIUM NEUTRAL CITATION:	[2021] VCC 1600

REASONS FOR SENTENCE
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Subject: Prohibited person in possession of a firearm, arson and others

Catchwords:              Guilty plea – Doran discount – high utilitarian value of guilty plea – remorse – prison hardship – good prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes [2021] VSCA 169; Boulton v R [2014] VSCA 342; Williams v R [2018] VSCA 171

Sentence:                   722 days imprisonment and 18-month community correction order – presentence detention 722 days

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APPEARANCES:	Counsel	Solicitors
For the DPP	Redmond Casey	Ms A. Hogan Office of the Director of Public Prosecutions
For the Accused	Megan Casey	Mr M. Brugman Criminal Lawyers Geelong

HIS HONOUR:

1Justin Mills, you have pleaded guilty to:

(a)   one charge of being a prohibited person in possession of a firearm (Charge 1)

(b)   two charges of threatening to inflict serious injury (Charges 2 and 3)

(c)   one charge of arson (Charge 4)

(d)   one charge of common assault (Charge 5)

(e)   one charge of conduct endangering persons (Charge 6)

(f)    one charge of causing damage to an emergency services vehicle by reckless driving (Charge 7)

(g)   one charge of possession of a drug of dependence, namely methylamphetamine (Charge 8) and

(h)   one charge of handling stolen goods (Charge 9)

2You have also pleaded guilty to the related summary offences of:

(a)   possession of cartridge ammunition (Charge 27)

(b)   possession of a controlled weapon, namely capsicum spray and a sword (Charge 31)

(c)   dealing with property reasonably suspected to be proceeds of crime namely a diesel fuel trailer and pump, a generator and ID cards (Charge 37)

Circumstances of offending

Episode 1

3The circumstances of your offending are set out in the Summary of Prosecution Opening.[1] They are agreed facts.

[1] Exhibit A – Summary of Prosecution Opening dated 20 September 2021.

4In April 2019, you formed a relationship with Hope Redmond. On 21 July 2019, the two of you moved into a caravan at a property occupied by Gary Falkiner.

5On a day, sometime between 20 and 27 August 2019, when you were in the caravan with Ms Redmond, you had an argument with her. You picked up a sawn-off rifle and threatened to shoot yourself. She was sitting on the bed. You fired the rifle in her direction and then pointed it yourself. She became distressed because she thought you had shot her. You immediately said you were sorry, asked her if she was okay and said you did not mean it.

6Because you had served 4 months’ imprisonment, following a sentence imposed on 2 September 2014, when you had the firearm, you were a prohibited person in possession of a firearm (Charge 1 – Prohibited Person in Possession of a Firearm).

7Later on the same day, you were in your car, which was parked near the caravan, and sending text messages to Ms Redmond, who was in the caravan, accusing her of cheating on you with Falkiner. When you got out of the car, she ran out of the caravan to hide from you. When she heard you threaten to shoot her cat, she jumped out and said, “no you’re not”. When you saw her, you pointed a firearm at her and threatened to shoot her (Charge 2 – Threat to Inflict Serious Injury), Falkiner (Charge 3 – Threat to Inflict Serious Injury) and yourself.

8Later again on the same day, the two of you were still arguing. When Ms Redmond said she wanted to leave, you locked the caravan door from the inside and threatened to set all you things, including the caravan, on fire. While she was sitting on the bed  you set the mattress alight  (Charge 4 – Arson). When she tried to get out  through the window, you pointed a firearm at her (Charge 5 – Common Assault). She stomped on the mattress to put out the fire. Then she told you to get out of her way and she walked out.

9You moved out on 10 October 2019.

Episode 2

10On 31 October 2019, Ms Redmond reported the domestic violence matters to police. At the same time, she sent one of your friends a text message telling you to “hide”. The friend forwarded it to you.

11Around midday, two unmarked police cars, carrying seven plainclothes detectives, drove to your home. They arrived as you were leaving your driveway in a car. The driver of the front police car moved to the centre of the road to block your path and activated lights and sirens. You accelerated onto the wrong side of the road to go past it (Charge 6 – Conduct Endangering Persons). And as you did, you struck the second police car (Charge 7 – Damaging an Emergency Services Vehicle by Reckless Driving).

12You then crashed into a fence, got out of the car and ran. Police chased you. Eventually you stopped, walked towards police and surrendered yourself. They arrested you.

13When they searched your car, they found a stolen rifle under the driver’s seat. They also found some ammunition (Summary Charge – Possess Cartridge Ammunition), a capsicum spray canister (Part of Summary Charge – Possess a Controlled Weapon) and two small bags containing 4.4g of methylamphetamine (Charge 8 – Possession of a Drug of Dependence). They also found four ID cards in various names (Part of Summary Charge – Dealing with Property Suspected of Being Proceeds of Crime).

14When they searched your house, they found a sword (Part of Summary Charge – Possess Prohibited Weapon) and a stolen diesel fuel trailer and pump and a generator (Part of Summary Charge – Dealing with Property Suspected of Being Proceeds of Crime).

15They also found a motorbike and a jet ski. Those two items and the rifle found in your car had all been stolen on 11 May 2019 (Charge 9 – Handling Stolen Goods).

16At interview, you said police gave you a hiding when they arrested you. You said the second police car came from nowhere. You said you didn’t know they were real police. None were wearing uniforms. You acknowledged one of the cars was fitted with lights and sirens. You said you got the firearm, which was under the car seat, that day and you had been “forced to do stuff for others”. You admitted all the stolen property, except for the motorbike, was yours.

17In relation to Ms Redmond, you admitted you had threatened to shoot her cat and to shoot Gary Falkiner. You said you never intended to harm her.

18You were remanded in custody where you have remained to this day.

19Ms Redmond declined the opportunity to make a victim impact statement.

20No doubt, she was frightened by your threatening behaviour.

Criminal record

21You have admitted a criminal record.

22You have convictions, predominantly for driving offences but also possession of a firearm, and a weapon and receiving stolen goods, between January 2006 and September 2014.

23Relevantly, on 2 September 2014, you were convicted of being a prohibited person in possession of a firearm, dealing with property suspected of being proceeds of crime, receiving stolen goods, possession of a weapon and drive whilst disqualified and sentenced to term of imprisonment.

Personal circumstances

24You were born on 28 June 1985 at Adelaide. You were 34 years old when you offended and are now aged 36 years.

25Your personal circumstances are set out in the psychiatric report of Dr Sam Calvin who assessed you on 28 February 2020.[2]

[2] Exhibit 2 – Report of Dr Sam Calvin dated 4 March 2020.

26You are one of four children. Your parents separated when you were 2 years old. Your family moved to Queensland where you grew up. You struggled at school and had difficulties with reading and writing.

27When you were a child, you witnessed an horrific shooting. An intruder shot your godmother, fatally, and your mother at home. And, a neighbour, who heard the gunfire, then shot the intruder. You reported lifelong flashbacks and anxiety from the trauma.

28You also reported a significant history of polysubstance abuse. You told Dr Calvin you started abusing cannabis and alcohol when you were 10 years old. You said by the age of 15, you had a serious alcohol problem and were admitted to a rehabilitation centre. At the age of 18, you started using ice. Drug treatment and rehabilitation helped you keep abstinent, but, after 3 to 4 years, you relapsed and for the last 10 years, prior to this offending, you had been using ice daily.

29You suffer chronic back and leg pain as a result of previous injuries.

30You are very self-conscious about a lump on your neck and anxiously avoid social contact.

31You were tearful when Dr Calvin interviewed you. You said you miss your family, especially your son, who is now 10 years old. You were his sole carer until you were remanded in custody. And you feel depressed. You have been segregated in prison and have found the isolation difficult.

32According to Dr Calvin, you showed insight into your drug addiction and said you are willing to undergo rehabilitation.

33In his opinion, your chaotic childhood caused you psychological problems and you resorted to illicit substances to cope with your anxieties.

34He recommended treatment for drug dependency and significant anxiety.

35Dr Calvin wrote, “the prognosis will hinge upon abstinence from his substance abuse and ongoing support for his underlying anxiety.”

36Your time on remand custody has been unusually hard. Since 31 December 2019, you have been segregated in a protection unit. Due to COVID-19 restrictions, prison programs and visits have been reduced. You have registered for a VicRoads program to enable you to regain your driver’s licence[3] and you have completed drug counselling sessions, punctually and appropriately, in June and July 2020.[4] You have benefited from your enforced drug abstinence.[5] You have a serious medical issue with your left foot where a metal plate is becoming loose and you will probably require remedial surgery.[6]

[3] Exhibit 3 – VicRoads Letter.

[4] Exhibit 4 –Caraniche Report.

[5] Exhibit 5 – Urine Screen Tests dated 10 April 2020, 6 August 2020, 9 August 2020, 2 October 2020, 4 May 2021 and 11 September 2021.

[6] Exhibit 6 – Medical Certificates dated 16 April 2020, 11 December 2020 and 5 March 2021.

37You have been restricted to two visits with your son. However, you have daily contact with him, and your mother, who is looking after him while you are in jail.

38Under a DHHS case plan, he has chosen to live with your mother in your absence. He does not want to live with his mother with whom he has little contact. He wants to live with you when you are released from prison. And you want him to resume living with you. Child protection acknowledge you have kept “meaningful and consistent contact with [your son] and [he] has a positive attachment towards [you].”[7]

[7] Exhibit 7 – DHHS Case Plan.

39You have a support network of family and friends. Your mother and your son live in a Geelong suburb. When you are released, you will live with a friend nearby. He has been your close friend for more than 10 years and knows you as a dedicated father and responsible person. To him, you have expressed remorse and a strong desire to address the personal issues which are related to your offending. He is confident that you can reform.[8] Your sister wrote that you have been trying your best as a single father and have raised a smart and talented boy. She described you as caring and generous when someone needs help.[9]

[8] Exhibit 8 – Letter of Travis Marshall.

[9] Exhibit 9 – Letter of Kristie, Sister.

Defence submissions

40Ms Casey, in written[10] and oral submissions, urged me to impose upon you a composite sentence of imprisonment and a Community Correction Order conditioned to address your drug and alcohol and psychological problems.

[10] Exhibit 1 – Outline of Submissions for Sentence Indication.

41She relied on the following factors in mitigation of penalty:

(a)   your cooperation with authorities, including your admissions at interview;

(b)   additionally, your voluntary disclosure to police you discharged a firearm in the caravan; Ms Redmond had not told police about it;

(c)   your guilty plea,  made at the earliest opportunity in the circumstances  for its high utilitarian value and as evidence of your acceptance of responsibility for your wrongdoing and remorse;

(d)   your limited criminal history, you have served only one prison term previously;

(e)   the additional hardship of segregation and COVID-19 isolation, and your foot problem, in prison; and

(f)    protective factors for your rehabilitation which include your desire to resume the care of your son and your supportive mother and friends.

Prosecution Submissions

42Mr Casey, who appeared for the prosecution, in conspicuously fair submissions, accepted, while you are to be sentenced for nine serious indictable offences, a sentence of imprisonment combined with a Community Correction Order to address the issues connected to your offending is within sentencing range.

43He submitted, relevantly to specific deterrence, you have relevant prior convictions although none for crimes of violence.

44He acknowledged your offending in relation to Ms Redmond, involving three incidents, comprised one continuing episode.

45He acknowledged you are entitled to an additional sentencing benefit for your voluntary disclosure that you discharged the firearm in the caravan, because that information was otherwise not known to investigating police.

46He also accepted you have suffered additional hardship in prison because of increased isolation and your serious foot condition.

47He also accepted the timing of your guilty plea should be regarded as “relatively early” because, soon after you were charged, you made a plea offer in relation to the domestic violence crimes and your possession of various items of contraband substantially similar to the charges you now face in this court.

48He also accepted that there is high utilitarian value in your willingness to resolve all matters including your contentious driving interaction with police.

49He noted that you were on a Community Correction Order, imposed on 11 July 2019, when you offended but acknowledged that your desire for reunification with your son is a “powerful provocateur” for you to complete a Community Correction Order now.

Consideration

50Your offending in relation to Ms Redmond, which involved threatening behaviour, while you were armed with a firearm, and setting fire to the mattress in the caravan, was serious. Domestic violence of any kind cannot be tolerated.

51Because of the potential for serious harm, your illegal possession of a firearm is also serious.

52General deterrence and just punishment are important sentencing factors.

53I must impose a term of imprisonment upon you.

54While specific deterrence is also important, you have a relatively limited criminal record.

55There are a number of mitigating factors in your favour.

56Firstly, your guilty plea, made at the earliest opportunity, has high utilitarian value, especially during the COVID-19 pandemic, because it alleviates the current strain on the justice system.[11]

[11] Worboyes [2021] VSCA 169, [35] and [39].

57Secondly, your cooperation with authorities, which included admissions you made at interview, and your early guilty pleas, demonstrate that you are remorseful.

58Thirdly, your disclosure of the shooting inside the caravan, which was otherwise unknown to police, entitles you to an additional demonstrative sentencing benefit.[12]

[12] R v Doran [2005] VSCA 271.

59Fourthly you have suffered additional hardship in prison because of your isolation in segregation, the COVID-19 related restrictions and your painful foot condition.

60Fifthly, your prospects of rehabilitation are very good. You have behaved yourself in custody and have been drug abstinent. You have shown insight into the need to address your drug and alcohol and mental health issues. Your desire to be reunited with your son is a powerful incentive for you to reform. And you have a network of supportive family and friends to help you.

61I accept Dr Calvin’s recommendation of treatment for your drug addiction and your mental health to assist your rehabilitation.

62I also accept his opinion your prospects of rehabilitation are dependent on motivation to remain drug abstinent.

63Current sentencing practices demonstrate a term of imprisonment, without a Community Correction Order, does not always follow.

64To enable me to consider the sentencing options, I have had you assessed for a Community Correction Order and you have been found suitable.

65The assessing officer recommends conditions for drug and, relying on the Forensicare Assessment, mental health treatment, and supervision. He also recommends assessment and participation in the Forensic Intervention Services branch (FAS). A Community Correction Order of at least 18 months is recommended to facilitate this condition.

66You have already spent 722 days in custody in difficult conditions of confinement and isolation. It is significant punishment.

67Because you are to be sentenced for a number of offences, I must ensure that your sentence properly reflects your overall criminality.

68Overall, I am satisfied that a composite sentence of imprisonment, which does not require you to serve further time in prison, and a Community Correction Order can achieve all sentencing objectives in your case.

69Because the episodes of your offending are related, I will impose an aggregate sentence for all offences, apart from the drug possession charge which can appropriately be dealt with by a fine.

70Mr Mills, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

71Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of:

(a)   being a prohibited person in possession of a firearm (Charge 1);

(b)   threats to inflict serious injury (Charges 2 and 3);

(c)   arson (Charge 4);

(d)   common assault (Charge 5);

(e)   conduct endangering persons (Charge 6);

(f)    causing damage to an emergency services vehicle by reckless driving (Charge 7); and

(g)   handling stolen goods (Charge 9).

and the related summary charges of:

(h)   possess a controlled weapon (capsicum spray and sword) (Summary Charge 31); and

(i)    dealing with property suspected to be proceeds of crime (four ID cards and a diesel fuel trailer and pump and a generator) (Summary Charge 37).

You are sentenced to an aggregate sentence of 722 days’ imprisonment in combination with a Community Correction Order.

72The Community Correction Order will commence today.

73The duration of the order is 18 months.

74In addition to the core conditions, I impose the following special conditions:

(a)   drug treatment and rehabilitation;

(b)   mental health treatment and rehabilitation;

(c)   programs to reduce offending

(d)   supervision

75Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare you have already served 722 days of your prison term by way of presentence detention.

76While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 4 years and 6 months’ imprisonment and fixed a minimum non-parole period of 3 years.

77For the offence of possession of methylamphetamine, which was a small quantity for your personal use, and the offence of possess cartridge ammunition, taking into account your financial circumstances, you are convicted and fined $200 on each charge.

78With your consent, I make the disposal orders in the terms of the draft orders filed.

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